The Current Federal Court System - Why You get The Run around...

The Current Federal Court System -
Why you get the run around, and XXXXXX in the end!

From: Karl Granse kgranse@earthlink.net
Sent: Wednesday, January 23, 2002 2:21 AM
Subject: The Current Federal Court System - Why you get the run around, and XXXXXX in the end!

I am re-sending this article, written by a number of Law Professors, (AT LEAST A YEAR IN THE MAKING) they are politically correct, but even THEY are pulling out their hair in frustration, they now want new laws from Congress, to impeach federal judges for not obeying and not ruling upon the statutes as Congress has written them in black and white. They are making recommendations to Congress to put an end to these "ex post facto" writing bunch of judges. This is by far, the best article I have ever read on the subject of judge made ex post facto law.

YOU AND I ARE NOT AT FAULT, IT'S NOT OUR PROCEDURES FOR THE MOST PART, THAT CAUSE LOSSES IN THE COURT - IT IS THE JUDGES - AND HERE IS YOUR PROOF - - IN BLACK AND WHITE

This is a must read, yes its long, but it gives you the word use knowledge and examples of how the judges avoid the truth in law and fact, and instead support their own agendas for their one world order, by use of your paper money and slave labor. The article also contains 355 Footnotes, helpful case law, etc.

The greater the number of people that know about this evil, the greater amount of energy can be generated to fix it! Judicial Watch is also a good team for some solutions in addressing the corrupt federal courts.

IT IS A CRIME FOR JUDGES TO WRITE LAW - ONLY CONGRESS HAS THAT POWER AS GIVEN BY THE CONSTUTION

ASK YOUR SELF - - - IF WE COULD GET THE JUDGES TO FOLLOW THE LAW AS WRITTEN AND STARE DECISIS - HOW WOULD THAT CHANGE HOW THE GOVERNMENT ACTS TOWARDS THE CITIZENS?

In all ways, the strategy and main theme of the government HAS BEEN AND IS to secretly and slowly brainwash you into a belief concept, that is; the walls oppression are closing in on you, and no matter what energy you put forth, you will not be able to defend yourself against their oppression (changes), no matter what law (case/constution/statute) you use as a sword to defend yourself, it will have no effect. They want you to feel defense-less, hopless, broken, isolated, and conqured, thusfore leaving you only one way out, that way out is the complete acceptance of your new role as a mental and physical slave to the 666 system.

How do you reclaim your God given birthright?

What do bad bad bad judges, politictians, congressmen, senators, officers, employees fear most, "being found out". How do you conqure them personally, use the great power of "embarrassment", PUT A BIG STRONG PUBLIC LIGHT ON THEIR LIES - DECEPTION - THIER UNCONSTITUTIONAL GOALS! Catch them in their lies (ENRON), then take the ant hill, and turn it into a HUGE STINKY MOUNTIAN, (something the public wants to get rid of) use three to five word sound bytes to destroy their so called "good reputation or public impression". The smaller the lie, the more easy it is for the public to understand it. If you have to explain the lie or method of deception to the public - it won't be as effective. Use absolute back and white documented proof at all times. Make the evil one feel insecure for lack of public support, "after all why should the public support a low-life lier like them". Should a judge get paid to lie or decieve the public? Should a congessman, senator, or president get paid to line his pocket with ENRON money? Should we pay for a war so corporations on the take, can steal other peoples drugs and oil? Should we pay to support a intra-government that allows the WTC disaster to take place in broad day light? Make them feel not wanted, and not important, create the public illusion that their evil time on earth has come and gone, and there is no room left for them on earth.

WE ARE NOT UN-AMERICIAN - - - - - - -

ONLY THEY THAT USE THEIR PUBLIC OFFICE TO LIE AND DECIEVE THE PUBLIC ARE UN-AMERICIAN ! ! !

AND THEY DON'T BELONG HERE IN AMERICA - THERE IS NO ROOM LEFT FOR THEM

Karl G. (Bacon) Granse . . . . the dragon slayer . . . now give me my damn sword back you guys!

THE STATUTORY TERM ANALYSIS (STA) METHOD

Vincent P. Tassinari^*

TABLE OF CONTENTS

ABSTRACT

In 1986, Chief Justice Rehnquist observed that "what lawyers and litigants in our country's federal courts are seeking to know [is] the meaning of a particular [term in a statute]."¹ To this end, Professor Tassinari asserts the Statutory Term Analysis (STA) Method as a useful, new, and nonobvious method of analyzing for Congress' meaning of a term in a federal statute. After thoroughly analyzing the current state of Congress' power to make all laws, judicial activism, and separation of powers, Professor Tassinari establishes that Congress is to blame for the judiciary's inability to confine itself to its assigned responsibilities by reason of Congress' failure to enact laws necessary and proper for carrying into execution Congress' Article I, Section 8, Clause 18 power.² This is contrary to the political, economic, religious, social, intellectual, and artistic thinking of the last 211 years. To shield Congress' power to make all laws from the continued, exponential growth of the unchecked Judicial Activist Movement of the late 1930's, Professor Tassinari concludes that Congress must enact the rules of the STA Method into the Federal Rules of Evidence as a necessary and proper means for carrying into execution Congress' Article I, Section 8, Clause 18 exclusive power. In this way, the excessive power of the Supreme Court will then fill in the deficient power of Congress to balance and bring to separation, coordination, and cooperation the powers granted by the People under our Constitution to these two branches.

SYNOPSIS

Figure 4 and Figure 2 below are discussed separately in this article but are provided here for comparison. Figure 4 represents the current state of Congress' power to make all laws under Article I, Section 8, Clause 18. As shown in Figure 4, the trier of law implements that judge's own meaning of a term in Congress' statute by supplying factual evidence from any available information to establish the scope of the subject matter of that statutory term. This judicial activism by the trier of law is behavior that is not maintained above Article III, Section 1 "good Behaviour."³ Figure 2 shows the changes proposed by this article. As illustrated in Figure 2, the Statutory Term Analysis (STA) Method replaces the objectionable practice of trier of law judicial activism in favor of Congress supplying the factual evidence from the Congressional Record to establish the scope of the meaning of each statutory term. These proposed changes work towards vesting Congress' power to make all laws in one Congress.

Figure 2. Congress' Article I, Section 8, Clause 18 Power to Make All Laws

INTRODUCTION

In April, 1997, I began writing a law review article concerning the amount of statutory compensation a holder of an invention patent was entitled to under the federal patent infringement compensation statute 35 U.S.C. § 284.⁴ Several clues indicated that the practice of law in the courts regarding this statute was inconsistent with the law enacted by Congress. In other words, there were several indications that the courts were not complying with Congress' statutory law. For example, in one paragraph of an issued opinion, the court correctly pointed out that § 284 expressly stated that a "reasonable royalty" is a floor measurement below which no award could fall, rather than an amount to be awarded. In the next paragraph of that same opinion, however, the court contradicted its "floor" statement and actually award a reasonable royalty. Another clue was that the courts treated Congress' statutory law as common law to derive support from the common law of contracts for the courts' conclusions as to the federal tort of patent infringement. The strongest clue was that the term "lost profits" was routinely used in §284 court opinions, even though that term did not appear in the text of 35 U.S.C. § 284.

In developing the resulting article titled Patent Compensation Under 35 U.S.C. § 284 (hereinafter "Patent Compensation"),⁵ I faced the same problem that courts have routinely faced since Congress' declared our Constitution in effect in 1789: determining the meaning of terms in a statute through the use of an appropriate analytical tool. Regarding such an analytical tool, Justice Frankfurter observed in 1947 that:

No matter how one states the problem of statutory construction, for me at least it does not carry its own answer. Though my business throughout most of my professional life has been with statutes, I come to you empty-handed. I bring no answers. I suspect the answers to the problems of an art are in its exercise. Not that one does not inherit, if one is capable of receiving it, the wisdom of the wise. But I confess unashamedly that I do not get much nourishment from books on statutory construction, and I say this after freshly reexamining them all, scores of them.⁶

Judge Posner of the Seventh Circuit noted in 1983 that:

It has been almost fifty years since James Landis complained that academic lawyers did not study legislation in a scientific (i.e., rigorous, systematic) spirit, and the situation is unchanged. There are countless studies, many of high distinction, of particular statutes, but they are not guided by any overall theory of legislation, and most academic lawyers, like most judges and practicing lawyers, would consider it otiose, impractical, and pretentious to try to develop one. No one has ever done for legislation what Holmes did for the common law.⁷

Moreover, Justice Scalia came to a similar conclusion five years later:

I am left with a sense of dissatisfaction, as I am sure you are, that a discourse concerning what one would suppose to be a rather fundamental-indeed, the most fundamental-aspect of constitutional theory and practice should end so inconclusively. But it should come as no surprise. We do not yet have an agreed-upon theory for interpreting statutes, either. I find it perhaps too laudatory to say that this is the genius of the common law system; but it is at least its nature.⁸

During the summer of 1996, while writing an amicus brief to the Supreme Court on the equitable tolling of the federal income tax refund statute 26 U.S.C. § 6511,⁹ I discovered that there is no overall analytical theory of legislation. Since no one had developed an appropriate statutory term analysis tool in the 210 years following the 1787 Constitutional Convention, I created the Statutory Term Analysis Method (hereinafter "STA Method") during the summer of 1997 and applied this powerful analytical tool to the terms in 35 U.S.C. § 284. In doing so, I was able to show that, through the Patent Act of 1946, Congress enacted into law the authority and responsibility for the courts to award patent compensation as the wrongdoer's gross income less fixed costs, irrespective of the plaintiff's economic capacity.¹⁰ This conclusion is contrary to the patent reasonable royalty practice of every federal court since 1964.

During the thirty-four years since 1964, individual inventors and small businesses have lost millions of dollars in patent infringement compensation, contrary to Congress' meaning of the terms in 35 U.S.C. § 284, whereas large corporations have remained unaffected by this practice of patent law in the federal courts. The burden of this huge disparity between Congress' statutory award scheme for the strict liability tort of patent infringement and the economic capacity award practice of the federal courts under what is essentially the common law of contracts, fell on the shoulders of plaintiffs who were poor, whereas the rich received the compensation authorized by Congress under § 284. This begs the question of why the courts have favored rich, large corporations in patent infringement cases and discriminated against individual inventors and small businesses, contrary to the law enacted by Congress. The answers that I found through my analysis in Patent Compensation were disturbing. I traced the economic capacity distinction to obiter dictum in the 1964 Supreme Court case of Aro Manufacturing v. Convertible Top Replacement Co. (hereinafter "Aro II").¹¹ Through egregious trier of law judicial activism, Justice Brennan and three other Justices subverted the Constitution by usurping Congress' vested power to make all laws to gut the meanings of the terms in Congress' patent law and judicially enacting their own meanings for Congress' statutory terms.¹² This behavior of the four Justices in Aro II caused devastating effects on court opinions and the rule of law, on litigants who sought and continue to seek justice, on Congress, and on the entire judicial system.¹³

In researching Patent Compensation, I concluded that trier of law judicial activism was not endemic to the Aro II case or even to patent law, but pandemic to all federal law. Thus, the primary purpose of this article is to convince Congress to enact the rules of the STA Method into the Federal Rules of Evidence as a means of rebalancing the powers between the Legislative Branch and Judicial Branch, consistent with Congress' vested power to make all laws under Article I, Section 8, Clause 18. In Part I, I classify the elements that make up a statute and characterize the difficult task of analyzing Congress' meaning of a term in a statute. Part II provides the justifications for the rules of the STA Method. Since the rules of the STA Method will also work for terms found in the Constitution, Part II provides justifications for the rules of the Constitutional Term Analysis Method (hereinafter the "CTA Method"). Part III discusses judicial activism, separation of powers, and the current solutions being implemented to combat judicial activism. Part III continues on to offer a three pronged approach led by the rules of the STA Method as the solution to the serious, separation of powers' problem caused by those involved in the Judicial Activist Movement. Part IV contains a compilation of ten recommendations for Congress. The main recommendation being enacting the rules of the STA Method into the Federal Rules of Evidence.

I. ELEMENTS OF A STATUTE

A federal statute is a group of written terms tangibly fixed as a unit in a government issued document specifying the subject matter that the Constitution, through Congress as a whole body, regards as the claimed law. A statute may contain more than one unit, and each unit may be regarded as a law in and of itself. For example, in the fictional statute 99 U.S.C. § 201, assume that section 201(a) sets out the requirements for liability and section 201(b) sets out the requirements for remedy. Here, section 201(a) may be regarded as one law and section 201(b) may be regarded as the second law within the same statute. The seven articles and twenty-seven amendments of the Federal Constitution may also be delineated in a similar way.

Regarding a specific unit identified as a law such as section 201(a) mentioned above, each law is comprised of one or more terms. Moreover, the terms that make up that law may contain one or more words. Where a term contains more than one word, each word of the phrase may be regarded as a term in and of itself. For example, if section 201(a) contained the term phrase "deadly weapon," there would be three terms to this term phrase: (i) weapon; (ii) deadly; and (iii) deadly weapon. Each of these three terms has its own meaning. That meaning is comprised of subject matter of a finite scope. In other words, meaning = subject matter + scope of subject matter. In the case of the term "deadly weapon", the matter and scope of the terms "weapon" and "deadly" contribute to the matter and scope of the third term, "deadly weapon."

In court, the matter and scope of a statutory term are dependent on the context of the factual issues brought before the court by the litigants. The context of the litigant factual issues brought before the court is what comprises a case or controversy as required by the Constitution.¹⁴ Thus, limited by the context of these litigant facts, the trier of law must analyze the relevant and timely legislative factual evidence to conclude as to the matter and scope of each term at issue. For example, assume that the only term at issue before the court is the term "deadly weapon" in the above fictional law section 201(a). Here, the overall duty of the trier of law is to determine whether the litigant's factual issues are within, or outside of (i.e., without), either (A) the matter or (B) the scope the term "deadly weapon."

Under Boolean logic, there are four possible outcomes to the propositions of whether the litigant's factual issues are within or without either (A) the matter or (B) the scope. That is, the four possible propositions are: (1) within the matter and within the scope; (2) without the matter, but within the scope; (3) within the matter, but without the scope; and (4) without the matter and without the scope. The relationship among four propositions and the four possible outcomes can be made explicit through the use of a diagram called a truth table.

Proposition	Matter (A)	Scope (B)	A	B	A & B	Possible Outcome	Defense
(1)	Within	Within	T	T	T	Liable/Guilty	Affirmative
(2)	Without	Within	F	T	F	Not Liable	Prima Facie
(3)	Within	Without	T	F	F	Not Liable	Prima Facie
(4)	Without	Without	F	F	F	Not Liable	Prima Facie

Figure 1. Conjunction Truth Table for Term at Issue

Under Boolean logic, Figure 1 above represents what is called a conjunction (A & B). Only in Proposition (1) circumstances, where the litigant's factual issues are within both (A) the matter and (B) the scope of the term at issue, can the defendant ultimately be found liable or guilty, as the case may be. In the other three propositions, the defendant retains its property or liberty since the litigant's factual issues are without either the matter or the scope or both the matter and the scope. Regarding the defenses, affirmative defenses arise under Proposition (1) whereas prima facie defenses arise under Propositions (2) through (4).

Figure 2 below is a schematic of Congress' power to make all laws under Article I, Section 8, Clause 18. The role played by the Congress, the President, and the Judiciary in legislation is directed by the Constitution and is illustrated in Figure 2. Regarding Congress' role, the Constitution directs Congress to establish the legislative factual evidence and Federal Rules of Evidence concerning this legislative factual evidence,¹⁵ each playing a part in the matter and scope of the subject matter of a statutory term. These are shown labeled as "The STA Method" in Figure 2. As discussed later in this article, Congress has never implemented into practice these two structural pieces of Congress' power to make all laws. To this end, the proposed STA Method bridges the existing gaps from Congress directly to the legislative factual evidence and indirectly to the legislative factual evidence. Once enacted into the Federal Rules of Evidence, the Rules of the STA Method will vest in practice the power to make all laws in one Congress.

Figure 2. Congress' Article I, Section 8, Clause 18 Power to Make All Laws

Typically, statutory law is comprised of several statutory terms, each term having a unique meaning. Figure 2 above shows three statutory term/statutory term meaning combinations. More than three such combinations exist and are represented in Figure 2 by ". . ."-the ellipsis mark. Typically, only one statutory term/meaning combination will be at issue during a courtroom trial. For each statutory term/meaning combination, Congress supplies the legislative factual evidence for both the subject matter and the scope of that subject matter. The matter is established in the text of the statute. Moreover, for reasons discussed in Part II of this article, the scope of this matter is set out by Congress as a whole in the Congressional Record as floor discussions, bills, and reports.

At the end of the floor discussions, Congress may vote to pass a bill into law. After a successful vote, the bill is presented to the President. As shown in the upper left-hand corner of Figure 2, the President asserts the President's power to sign this bill into statutory law or return and object (i.e., go/no go power) as the President so chooses.

Litigants generate litigant facts through their behavior. Where these facts generate a legal dispute over the meaning of a term in a federal statute, the entire concern may be brought to court. In court, the trier of law applies analytical labor to determine Congress' meaning of the term at issue, subject to the Federal Rules of Evidence and as limited by the litigant factual evidence. Note that as directed by the Federal Rules of Evidence, the matter and scope of a statutory term as well as the litigant factual evidence are tested by the trier of law against a particular level of assuredness (e.g. preponderance, clear and convincing, etc.). The level of assuredness varies according to what the trier of law applies it against. In any case, determining Congress' meaning of a statutory term is the exclusive realm of the trier of law despite any mixed fact/law issues that may arise.¹⁶

Assume that the litigant's behavior brought into legal issue the meaning of the term "deadly weapon" from the fictional statute section 201(a). Establishing to a specific level of certainty whether the litigant's factual issues are within or without either (A) the matter or (B) the scope of the section 201(a) term "deadly weapon" is a difficult task for the trier of law. The task is made even more difficult since the matter and scope of the term "deadly weapon" in the fictional statute are substantially dependent upon the matter and scope of the term "weapon" and the matter and scope of the modifying term "deadly." Thus, before even getting to the overall duty of determining whether the litigant's factual issues are within or without either the matter or the scope of the term "deadly weapon," the trier of law must analyze the relevant legislative factual evidence to determine the matter and the scope of the term "weapon", then the term "deadly", and then the term "deadly weapon." Note that each of these terms are limited by the context of the litigant factual issues brought before the court by the litigants.

The good news is that even without knowing the extent of the theoretical scope of a term in Congress' statute, a court still may conclude as to whether the litigant's facts fall within or without the theoretical scope. Moreover, once this primary legislative analysis is done properly for a set of litigant facts by a court, federal agency, or even within a law review article, the meaning of that term will be expressly known for that set of litigant facts. Falling within or without the overall theoretical scope is represented in Figure 3 below.

Figure 3. Theoretical and Analyzed Scope of the Matter of a Statutory Term

As shown in Figure 3, both Analyzed Scope #1 and Analyzed Scope #2 fall within the matter and theoretical scope of the particular statutory term at issue. The overall theoretical legal scope is shown in dashed lines because the overall theoretical scope can never be completely known. Analyzed Scope #3, as shown, falls outside at least the overall theoretical scope, if not the matter, of the particular statutory term at issue. With Analyzed Scope #4 partially outside of the overall theoretical scope, no liability can be maintained and thus Analyzed Scope #4 is deemed outside the overall theoretical scope of the particular term at issue. Analyzed Scope #5 is shown within the overall theoretical scope having some litigant facts in common with Analyzed Scope #2. Other scope scenarios are possible.

Each analyzed scope represents cases with unique facts. As each analyzed scope of a particular term in Congress' law becomes revealed, subsequent courts then need only cite to the relevant, primary analysis of that judge, executive branch employee, or author to support that subsequent court's conclusion regarding that term. Where the primary analysis is binding precedent, the subsequent court will adhere to the principle of law under the Doctrine of Precedent Adherence (in the dead language of Latin, Doctrine of Stare Decisis). Where the primary analysis is not binding precedent, the court may adopt the principle of law under the Doctrine of Precedent Adoption (in the dead language of Latin, Doctrine of Quieta Non Movere). Under either Doctrine, the subsequent court is exercising its lawful authority rather than impermissibly deferring to another court, federal agency, or law review author.¹⁷

Over time, each new analyzed scope may fill in the space within the overall theoretical scope. It is important to note, however, that since the courts are restricted by the case or controversy requirement to the factual issues before it, Congress' overall theoretical scope of the subject matter of a particular statutory term will most likely never be brought out over time by the courts. Thus, the overall theoretical scope is shown in dashed lines. Just as important, there is insufficient justification for a court to expressly identify and rule on the overall theoretical scope of a statutory term since Congress' statutes regulate behavior in fact, not behavior in the abstract.

What I have been discussing above is intangible; that is to say, it cannot be touched by the human hand. Real property and personal property can be touched and, thus, quantified by human hands. In contrast, law is equivalent to intellectual property in that both are intangible properties of the mind. As property of the mind, there is no tangible item by which to quantify the theoretical scope of a meaning of a term in Congress' law. Although Congress' agreed upon ideas of regulating behavior are tangibly embodied in a federal document, the overall theoretical scope of these agreed upon ideas is not susceptible to quantification in the abstract. It is because the overall theoretical scope of these agreed upon ideas is not susceptible to quantification in the abstract that the Article III, Section 2, Clause 2 "case or controversy" requirement restricts the matter and scope of a statutory term to the context of the factual issues brought before the court by the litigants. This explains why the case or controversy requirement was placed into our Federal Constitution by the founders of the United States.

In short, the good news is that our Constitution as it currently exists, is sufficient for permitting judges to analyze the terms within one of Congress' statutes. Now for the bad news. The judicial duty of analyzing the terms within Congress' statute is hard work. This duty actually requires the litigants and ultimately the trier of law to analyze the relevant and timely Congressional Record entries that make up the entire realm of the legislative factual evidence. These Congressional Record entries are made over many months (sometimes years), are designed for political persuasion, not legal persuasion, and are generally numerous. Although our Government by Constitution delegates the burden of proving a legal proposition to the litigants who come before the court, the judge always retains the responsibility of ensuring that the proofs set out in the court's written opinion meet the legal certainty necessary to support its conclusion. Thus, even where the litigants get away with "slacking" in their professional responsibility to their clients and the court, the court cannot avoid its responsibility and must support its conclusions through cogent analysis as published in a written opinion.

The time it takes for a federal judge to analytically address each applicable Congressional Record entry is in direct conflict with that judge's duty to process the court's docket in a timely fashion. These docket pressures, as well as other pressures faced by a federal judge, are sometimes so great that the trier of law's human nature overcomes the trier of law's self-restraint. Where the judge's human nature predominates over self-restraint, a particular judge avoids the hard work of actual judging and instead implements the judge's own meaning of a term in a statute, even though such behavior falls below the particular level of good behavior established under Article III, Section I of the Federal Constitution.¹⁸ Where a judge implements that judge's own meaning of a term in a statute, that trier of law is referred to as a judicial activist, whose behavior is judicial activism.

The rules of the STA Method can be used to shield Congress' power to make all laws from trier of law judicial activism as the rules work toward rebalancing the powers between Congress and the Judiciary. In order to come to agreement that the rules of the STA Method must be enacted into the Federal Rules of Evidence to shield Congress' power to make all laws, it is first important to understand what these rules are and how they interplay with the structure of our Government. Part II and Part III address these areas, respectively.

II. STATUTORY TERM ANALYSIS & CONSTITUTIONAL TERM ANALYSIS

Determining whether Congress as a whole reasonably gave a statutory term a different and particular meaning from that term's ordinary and reasonable meaning requires structured analysis. By loose analogy to the arcane area of patent claim construction, this article asserts a useful, new, and nonobvious method of Statutory Term Analysis (STA) and a useful, new, and nonobvious method of Constitutional Term Analysis (CTA), both of which may be used in all bodies of law.¹⁹

A. Patent Claim Construction

A patent claim is a group of written terms tangibly fixed as a unit in a government issued document specifying the subject matter that the inventor regards as the claimed invention.²⁰ Patent law revolves around patent claim term analysis (in patent law nomenclature "claim construction"). Every patent claim term within each issued patent must be construed in all cases because it is only possible to determine whether the accused matter reasonably falls within the claim's scope by construing the claim's terms. Similar to the legislative representative's meaning of a statutory term or Constitutional term, a patent claim term at issue must be construed by considering the inventor's meaning of that claim term as expressed through the undisputed, timely and relevant public record.²¹ In the case of a patent claim term, the undisputed public records that may properly be used for term analysis comprise (1) the patent specification with its (a) claims and (b) written description and (2) the in-evidence patent file history which contains "the complete record of all the proceedings before the Patent and Trademark Office"²² by the inventor or the inventor's agent. Since the patent specification and in-evidence patent file history is evidence that is intrinsic to the meaning of a term in a patent claim, it is "always necessary to review the specifications to determine whether the inventor has used any terms in a manner inconsistent with their ordinary [and reasonable] meaning."²³

Patent claim construction is a critical and recurring problem for every patent system participant.²⁴ In the same way that Congress drafts a law, patent attorneys draft a patent claim to cover future issues for which they have no way of presently conceiving. In the same way defense lawyers attempt to show that their client's behavior falls outside the matter or scope of a term in a law drafted by Congress, patent defense lawyers attempt to show that their client's product or process falls outside the matter or scope of a patent claim drafted by a patent prosecution attorney. With the future unknown and the imagination of the inventors of products and processes unlimited, the need for theoretical legitimacy in patent claim construction is paramount.

Taking this need for theoretical legitimacy seriously, the United States Court of Appeals for the Federal Circuit²⁵ responded by developing the most comprehensive set of structured term analysis rules for any body of law. The Federal Circuit's structured term analysis rules formed the basis for the Statutory Term Analysis rules and Constitutional Term Analysis rules set out below.

B. Statutory Term Analysis (The STA Method)

The Statutory Term Analysis Method (hereinafter the "STA Method") is the analytical method of determining Congress', as a whole body (hereinafter "the body Congress"), meaning of a statutory term at issue. The STA Method complies with the Constitution's mandate that vests power to make all laws in one Congress while maintaining the balance between the judiciary's independence from politics and the judiciary's accountability to Congress for extrajudicial actions. It is important to note that, unlike other methods such as constitutional interpretation or statutory interpretation, the STA Method focuses on analysis and not on the document containing the term to be analyzed. Moreover, the STA Method focuses on the term to be analyzed rather than the method of analysis, such as in originalism and textualism (adumbrative, outlined analytical methods for which this article supplies the specific analytical rules); or the Judiciary-end-run-around-Congress-and-the-Constitution-dynamism model (corrupting analytical method in response to which this article seeks to shift Congress' usurped power to make all laws from the unelected judiciary back to the elected members of Congress).

Eisegesis is the method of analyzing the terms of a text by sneaking in one's own meaning as the author's meaning. For example, the court in Simmons v. Prudential Insurance Company of America²⁶ stated that if it "were to allow extra-contractual or punitive relief to be implied in [ERISA 29 U.S.C.] § 1104, it would be reading meaning into a statute instead of studying [the C]ongressional [Record] to determine meaning reposed in the statute. It is the difference between eisegesis in the former exercise and exegesis in the latter."²⁷ However, the purpose of statutory term analysis by the trier of law is to ascertain the body Congress' meaning of a term in a statute.²⁸ Thus, "every consideration brought to bear for the solution of that problem must be devoted to that end alone."²⁹ To address these considerations, the rules of the STA Method are centered around Article I, Section 5, Clause 3 of the Constitution. This Clause mandates that "[e]ach House shall keep a Journal of its Proceedings, and from time to time publish the same."³⁰ This Congressional Journal has had a total of four titles: Annals of Congress (1789-1824); Register of Debates in Congress (1824-1837); Congressional Globe (1837-1873); and Congressional Record (1873 to present). Under the STA Method, the entire realm of evidence regarding a term at issue is first divided into two categories concerning the Congressional Record. Rules of analysis are then set out regarding these two categories. Each category is then divided into subcategories with rules of analysis set out for each subcategory. Below are the rules of the STA Method.

In determining the body Congress' meaning of a statutory term at issue under the rules of the STA Method, there are only two sources of guidance: intrinsic evidence and extrinsic evidence. Intrinsic evidence is that evidence from the Congressional Record that is internal to body Congress' meaning of a statutory term. As stated by the Court in 1982:

It is not the function of this Court . . . to apply the finishing touches needed to perfect legislation. Our job does not extend beyond attempting to fathom what it is that Congress produced, blemished as the Court may perceive that creation to be. Our task is solely to give effect to the [meanings], as best they can be determined, of the [terms] . . . that [Congress] enacted [in] the legislation. Absent compelling evidence requiring a contrary conclusion, the best indication of Congress' [meaning of a term] is Congress' own language.³¹

Contrary to Justice Holmes' assertion that lawyers do not identify issues and rules by which to analyze and conclude, analyzing all useful documents is the only way to derive what Justice Holmes called the "felt meaning"³² of a term in a statute. This intrinsic evidence is exclusively comprised of the relevant Congressional Record entries that were both presented on the floor of Congress and in existence at any time before the enactment date of the statute. This will be evidenced by that entry being applicably set out in the Congressional Record. The intrinsic evidence comprises the entire realm of established legislative facts and the trier of law is to expressly address and analyze each intrinsic fact; colloquially, to take friendship with all the intrinsic evidence. Importantly, this relevant intrinsic evidence is not restricted to any timely session of Congress, although the date of the timely session may affect the evidentiary weight of the intrinsic item.

Requiring the use of timely legislative factual evidence makes sense. Permitting the Judicial Branch to use evidence that came into existence after the enactment date of the statute diminishes Congress' law into nothing more than an abstract proposal with which the Judiciary may do as it pleases ex post facto. Moreover, as explained in United States v. American-Foreign S.S. Corp.,³³ "[l]aws are not abstract propositions. They are expressions of policy arising out of specific situations and addressed to the attainment of particular ends."³⁴ There is little doubt that words do grow from their roots, whose linguistic meanings may and often do change over time. In fact, outside the context of law, a continuous path from established meaning to changed meaning should be taken over time for definitions within linguistic dictionaries. However, where Congress captures these words into law as terms in a statute at some point in time along this path, the legal meaning of each term is established by Congress as the law of the land as of the enactment date of that statute. Thus, in the context of Congress' law, words used as statutory terms indeed are omiom words, that is, words in which "Original Meaning Is the Only Meaning."³⁵ To this end, a time-established linguistic meaning becomes a legal meaning only when Congress elevates that linguistic meaning to law through Congress' power to make all laws under Article I, Section 8, Clause 18.

Extrinsic evidence is that evidence that is external to the body Congress' meaning of a statutory term. More specifically, extrinsic evidence is comprised of the relevant document evidence that was not applicably set out in the Congressional Record, but was in existence at any time before the enactment date of the statute.³⁶ This relevant extrinsic evidence is not restricted to any timely source, although the relevant and timely source may affect the evidentiary weight of the extrinsic item.

In determining the body Congress' meaning of a term at issue in a statute, the intrinsic evidence is always analyzed first. That is, intrinsic evidence is always analyzed before extrinsic evidence under the rules of the STA Method. The rationale for this is that the intrinsic evidence was applicably set out in the Congressional Record and thus represents the most significant source for the body Congress' meaning of a term at issue.

1. The Relevant Statute for Analysis

To begin the four part statutory term analysis, it is critical that the relevant statute is selected for the analysis. A statute may be the relevant statute if the term at issue first appeared in that statute, regardless of the form Congress used to express the term at issue.

2. Law Text Change from Old Law to New Law

In analyzing the intrinsic evidence under the STA Method, the relevant statutory text change from the old law to the new law is set out as the second part of the STA Method. As Justice Frankfurter stated, "[t]hough we may not end with the words in construing a disputed statut[ory term], one certainly begins there."³⁷ This intrinsic evidence is then analyzed to draw proper conclusions from the facial change in the text and to dispel any improperly drawn conclusions. Where there is no old statutory law, this STA Method step does not apply to the analysis.

3. The Statute at Issue

With the relevant statute for analysis selected and the change from the old law to the new law analyzed, the third part of the STA Method is to identify the terms in the statute that the litigants have taken before the court³⁸ and then analyze these terms.

The main analytical construct to the rules of the STA Method is set out as follows:

The Different & Particular Meaning Rule

With the terms at issue identified, each term at issue is given Congress' expressed statutory definition for that term. However, where Congress does not make an expressed statutory definition for a term at issue, the body Congress is assumed to have given that term its ordinary and reasonable meaning unless the body Congress reasonably gave that term a meaning that is different and particular from that term's assumed ordinary and reasonable meaning. Where the body Congress has not in fact given that tern an ordinary and reasonable meaning or a different and particular meaning, the law is to be voided by the courts.

Congress enacts laws to cause effects, regardless of whether the Judiciary can discern a purpose for Congress' actions. In other words, Sovereign power is exercised to cause results, whether the trier of law extrajudicially classifies the results as foreseeable or unforeseeable, harsh or benevolent, knowable or unknowable. Thus, the Different & Particular Meaning rule supplants any remaining use of the "representational" model, "fundamental aspirational" theory, the "reasonable purpose" rule, the "congressional intent" rule, "public choice" theory, "ascribed purpose" rule, "conservative revisionism," "liberal revisionism," "cannons of interpretation," the "clear statement" model, the "attribution of purpose" approach, "human dignity" theory, the "balancing test," "the plain meaning" rule, "economic liberty" theory, "interest group" theory, "natural law" theory, "pluralism" theory, "imaginative reconstruction" theory, "totality of the circumstances" test, or other like concepts as applied to the body Congress' meaning of a statutory term since these theories are currently used to aggrandize the Judiciary and enable that branch to create the appearance that judicial decisions are constrained. Although it is true that, under any analytical method, "the irresponsible judge will twist any approach to yield the outcomes that he desires and the stupid judge will do the same thing unconsciously,"³⁹ the STA Method is distinguished from all other approaches in that the rules of STA Method prevent a judge from creating the appearance that twisted judicial outcomes are constrained. Under the STA Method, twisted judicial outcomes stand out as a beacon that signals to Congress to gear up Congress' Article I persuasion powers over mumpsimic judicial activists.

Analyzing a term at issue under part three of the four part rules of STA Method is a six step process. However, the inconsistent language used by Congress in statutes to reference the same term creates a minor issue that nonetheless must be analytically addressed at the outset. As Judge Posner observed, "a statute that is the product of compromise may contain redundant language as a byproduct of the strains of the negotiating process."⁴⁰ Thus, each possible manifestation of the term at issue within the statute is to be set out and analyzed to determine whether that manifestation analytically subsumes the other manifestations, is analytically merged into the other manifestations, or is found not relevant concerning the term at issue so that only one term at issue remains.⁴¹ The body Congress' meaning of this one remaining term at issue is then derived through the six steps of analyzing Congress' specification of the law. The six steps are titled: a. The Statute's Text Body; b. The Statute's Preamble & Title; c. Floor Discussions, Bills, Reports; d. The Statute's Progression History Estoppel; e. Extrinsic Evidence; f. Conclusion: the Term at Issue.

a. The Statute's Text Body

Where a term at issue is defined expressly in the statute, it is improper to give any weight to further evidence, either intrinsic or extrinsic, to alter the body Congress' definition of that term.⁴² The reason for this is that the text of a statute is clear only where a term at issue is defined expressly in the statute. This express definition gives due weight to the facility with words that has been developed by legislators since the founding of the United States.

In just about all cases, however, the body Congress' meaning of a statutory term cannot be determined without going beyond the statute itself and into the Congressional Record. This limitation on written language is the direct result of what Justice Frankfurter refers to as the inexactitude of words in his 1947 article, Some Reflections on the Reading of Statutes.⁴³ In his article, Justice Frankfurter notes that since words are symbols of meaning with shifting variables, the configuration of words by Congress into statutory terms-themselves symbols of meaning-"can hardly achieve invariant meaning or assured definiteness."⁴⁴

The People of the United States recognized this inexactitude of words at the founding of our Country and provided a two-pronged approach in the Constitution to overcome this problem. The first prong was the interdependency of Congress, the Congressional Record, and Congress' rules regarding the Congressional Record. The second prong was the decision to form an independent Judiciary as the third branch of our Government.

Recall that meaning = subject matter + scope of subject matter. For the first prong of the two pronged approach, it is important to reiterate that a statute or division thereof is a group of written terms tangibly fixed as a unit in a government issued document specifying the subject matter that the Constitution, through the body Congress, regards as the claimed law. Moreover, making a law entails both making the terms of the law and making the meaning of the terms of the law. As part of its vested power to make the terms of all laws, Congress is the branch with the exclusive Constitutional power to make the meaning of the terms in the law.⁴⁵ To this end, Congress may be its own lexicographer and need not use conventional terminology. As Judge Mikva put it, "Congress is like Humpty Dumpty in Through the Looking Glass. When Congress uses a word, the word means what Congress says it means, all the dictionary definitions to the contrary notwithstanding."⁴⁶

It is also important to note that Congress may give subject matter or scope of that subject matter to the terms in a statute through any means necessary and proper for carrying the terms of that law into execution.⁴⁷ Pursuant to this, Congress establishes the subject matter portion of the meaning of a statutory term within the text of the statute. However, as a result of the inexactitude of words, a statutory term has a meaning that is not usually subject to a cogent, statutory definition. This limitation on language prevents Congress from supplying both the matter and scope of each statutory term within the text of the statute. In other words, this limitation on language demands that Congress leave as facially or textually ambiguous the scope of most terms in a statute. Thus, as a necessary means of giving meaning to these delphic terms of the law, Article I of the Constitution authorizes Congress to use the Section 5, Clause 3 Congressional Record to establish the scope of the subject matter of a term in a statute.⁴⁸ Moreover, Article I authorizes Congress to use the Congressional Record as a proper means of giving scope to the terms in the law, since the Section 5, Clause 3 Congressional Record is a Journal that may neither be changed nor altered once published and disseminated to the public.

In the 1983 case of Immigration and Naturalization Service v. Chadha,⁴⁹ the Court observed that "[t]he division of Congress into two distinctive bodies assures that the legislative power [is] exercised only after opportunity for full study and debate."⁵⁰ Thus, Congress' necessary and proper use of the Congressional Record to establish the scope of the matter of the terms in a statute is subject only to the rules of its proceedings under Article I, Section 5, Clause 2.⁵¹ The rules of Congress' proceedings are, of course, subject to scrutiny by the Judiciary as the necessary check to balance Congress' legislative power. Merely because the Judiciary might be inconvenienced, have to work harder or put more effort into analyzing each of the relevant and timely Congressional Record entries to conclude what the body Congress' meaning of a statutory term is, does not make Congress' use of the Congressional Record unnecessary or improper under the Constitution. Such an analytical conclusion by the Judiciary of Congress' law making right under Article I, Section 8, Clause 18 would disparage the people's right to vest their entire legislative power into the capable hands of their chosen representatives. Thus, the Constitution designed the necessary and purposeful facial ambiguities of the scope of most statutory terms for future unfolding through judicial analysis of the intrinsic evidence of the Congressional Record.⁵²

This leads to the second prong authorized by the Constitution to overcome the inexactitude of words. With the scope of most terms in a statute set out in the Congressional Record rather than solely in the text of a statute, the people of the United States needed a hard working, intelligent group, independent of the now completed legislative process, to do the bulk of the "unfolding" analytical work. Thus, as the second prong, the Constitution delegates the authority and responsibility of performing this mundane, but vital task of analysis to an independent Judiciary as the third branch of our Government.⁵³ In other words, without the analytical labor of the Judicial Branch, "the effectiveness and rationality of congressional commands are inevitably eviscerated."⁵⁴ Thus, the ambiguity in the body Congress' meaning of a statutory term does not represent a failure of the legislative process, as is so often the conclusion of living constitutionalists, but rather, the ambiguity flows from the inexactitude of words that in turn gives rise to the need for a third branch of government to act as a referee⁵⁵ in conflicts among the groups consisting of the people, the President, Congress, the States, the Judiciary, and those periodically subject to the United States Constitution.

An ambiguous meaning of a statutory term requires an inference of law by the trier of law. For an inference of law, a process of logic and reason-an illation-must be made in writing by a judge before concluding, as a matter of law, what the body Congress' meaning of a statutory term is. This dianoetic process entails applying the established legislative facts to the disputed term in the statute according to the rules of the STA Method in light of the issues of the litigants before the court. However, inconsequent illations from improper inception of the instituted information. To prevent inconsequent, the intrinsic evidence comprises the entire realm of established legislative facts and the trier of law is to expressly address and analyze each intrinsic fact; colloquially, "to take friendship" with all the intrinsic evidence.

The Judiciary's relationship to federal statutes is the same as the construction worker's relationship to architectural blueprints: both have the duty to implement the architect's meaning of the terms in that document. Moreover, the legislative expression of one thing may or may not be the legal exclusion of the other. Thus, where a statutory term requires an inference of law, the judge is bound by oath of office⁵⁶ and the duty set out in Marbury v. Madison⁵⁷ to analyze the statute's terms and their legislative specification- weighing all the relevant and timely legislative facts, not just some-before drawing any conclusion as a matter of law. In short, whenever the court must make an inference of law regarding a statutory term, the trier of law must proceed through the entire STA Method. To help litigants and the trier of law to locate all of the timely and relevant intrinsic evidence concerning an enacted bill, I recommend that Congress publish a list of Congressional Record page citations that correspond to the intrinsic evidence of an enacted bill as defined by the rules of the STA Method.⁵⁸

The required level of legislative clarity is relatively low for the trier of law to conclude that the intrinsic evidence is necessarily clear as to support one legislative proposition over another. From his study of legislation, Justice Frankfurter concluded that legislative materials need only demonstrate with reasonable clarity that Congress has in fact used a private code, so that what appears to be violence to language is merely respect to special usage of a more probable meaning.⁵⁹ In BFP v. Resolution Trust Corp.,⁶⁰ the Court found that "those charged with the duty of legislating [need only be] reasonably explicit."⁶¹

Given the adiaphorous, winner and loser nature of the legislative process, this preponderance level of proof makes sense. Our system of government is not an isocracy; that is, ours is not a system in which everybody has equal political power. Ours is a government by written Constitution where the governed control the government. Elected representatives serve so long as they meet the "basic human or societal needs"⁶² of the American People who make up the ever-changing political majority. As James Madison wrote, "[the government's] dependence on the people is, no doubt, the primary control on the government."⁶³ There will be political winners. There will be political losers. The dividing point between political winners and political losers is the political majority, whose superiority in Congress needs only to be outweighing under our Government by Constitution. To effectuate this outweighing, an analysis of the intrinsic evidence alone need only reasonably determine the body Congress' meaning of a statutory term for a court to conclude that the intrinsic evidence is necessarily clear in the support of one legislative proposition over another.

In light of the above discussion, the STA Method rule include the following. Where a term at issue is not expressly defined in the statute itself, the term at issue is deemed a disputed term. Under such circumstances, Justice Frankfurter advised the trier of law to assumed that "Congress uses common words in their popular meaning, as used in the common speech of men."⁶⁴ Thus, where the term at issue is a disputed term, the body Congress is assumed to have given that term its ordinary and reasonable meaning as of the enactment date of the statute. However, Justice Frankfurter also advised cryptically that "if a word is obviously transplanted from another legal source, whether the common law or other legislation, it brings the old soil with it."⁶⁵ Thus, if the body Congress reasonably gave the disputed term a different and particular meaning from the disputed term's assumed ordinary and reasonable meaning, then the different and particular meaning controls. In other words, the key issue in just about all cases is whether the body Congress reasonably gave the disputed term a different and particular meaning from the disputed term's assumed ordinary and reasonable meaning.

Where the body Congress has not reasonable given that term a different and particular meaning, it is important to go back and challenge the assumption that Congress gave that term and ordinary and reasonable meaning. If, after analyzing the relevant and timely legislative factual evidence from the Congressional Record, the conclusion is that Congress did not reasonably give that term an ordinary and reasonable meaning, the law is to be voided by the courts, not judicially reenacted thought extrinsic evidence. In other works, where the Congressional Record reasonable does not contain the necessary and proper written description of the scope of the subject matter of the term at issue, the law is to be voided by the courts, not judicially reenacted thought extrinsic evidence. Circumstances where Congress neither gave the term at issue a different and particular meaning or an ordinary and reasonable meaning may include amendments to bills for which the floor discussion is insufficient or nonexistent.

As one heuristic technique for beginning the analysis under the STA Method, the relevant and timely extrinsic evidence may be consulted to arrive at the body Congress' assumed ordinary and reasonable meaning of the disputed term. For example, the Court in Nix v. Hedden⁶⁶ addressed whether a tomato was within the scope of the subject matter of the term "fruit" or the term "vegetable" by stating that "[o]f that [linguistic] meaning the court is bound to take judicial notice, as it does in regard to all words in our own tongue; and upon such a question dictionaries are admitted, not as [intrinsic] evidence, but only as aids to the memory and understanding of the court."⁶⁷ Thus, although relevant and timely extrinsic evidence may be consulted to arrive at this initial meaning, the body Congress' meaning for the disputed term, as determined under the STA Method, commutes for the assumed meaning initially taken from the intrinsic or extrinsic evidence.

b. The Statute's Preamble & Title

The relevant parts of the preamble and title to the Act are next analyzed as the second step in part three of the STA Method. Chief Justice Marshall struck early at the notion that the title to an Act carries no weight as a legislative fact by remarking in his common sense fashion that, where the trier of law analyzes for the body Congress' meaning of a statutory term, that judge "seizes every thing from which aid can be derived; and in such case the title claims a degree of notice, and will have its due share of consideration."⁶⁸ Moreover, Justice Cardozo observed that "the meaning of a statut[ory term] is to be looked for, not in any single part, but in all the parts together and in their relation to the end in view."⁶⁹ Thus, the preamble and title to an act may be used as intrinsic evidence to determine whether the body Congress reasonably gave a disputed term a different and particular meaning from that disputed term's assumed ordinary and reasonable meaning.

In most circumstances, the preamble and title to an act are outside the statute's enacting clause. In those circumstances where either the preamble or title to an act is outside the statute's enacting clause, the preamble or title is not enacted into law and thus is not law. Since the statute's preamble and title require brevity, this brevity is to be considered when giving weight to the jejune preamble and jejune title language. Thus, the statute's preamble and title are far from conclusive evidence of the body Congress' meaning of the disputed term.

c. Floor Discussions, Bills, Reports

Among the intrinsic evidence, relevant floor discussion, bill, and report evidence is the best guide to the body Congress' meaning of a disputed term. The rationale for this is that, this evidence was applicably entered in the Congressional Record. In just about all cases, the Congressional Record will contain the necessary and proper written description of the scope of the subject matter of a term in a statute as to enable those subject to the statute to conform their behavior to that statute. Where the Congressional Record does not contain the necessary and proper written description for either an ordinary and reasonable meaning or a different and particular meaning, the law is to be voided by the courts, not judicially reenacted through extrinsic evidence. As Senator Hatch put it, "if the Congress does not enact a discernible principle for the resolution of cases, then justices or judges have no law to apply."⁷⁰

One of the most endearing features of this public record evidence is that it is widely available in hard-bound, print form. Federal law requires the wide distribution of published compilations of separately bound legislative histories, the index to the Congressional Record, bill and resolution status tables in the Congressional Record index, and bill tracking reports.⁷¹ Legal scholars may obtain parts of the Congressional Record from a local member of Congress, who may send any part of the Congressional Record as franked mail under 39 U.S.C. § 3212(a).⁷² Moreover, members of press bureaus such as a newspaper correspondent need only make an application under 44 U.S.C. § 906⁷³ to receive a semimonthly edition of the Congressional Record from the Public Printer.

The Congressional Record is also making its appearance in electronic formats. The academic legal community has access to an electronic version of the Congressional Record through LEXIS-NEXIS and WESTLAW which presently makes the search for Congressional Record entries regarding a particular bill introduced after 1984, relatively easy. Under 44 U.S.C. § 4101(a)(2),⁷⁴ the Superintendent of Documents, under the direction of the Public Printer, is required to provide a system of online access to the Congressional Record. At present the National Digital Library Program of the Library of Congress⁷⁵ is working over the next few years to bring the records of the U.S. Congress from 1774 up to 1873. From the Library of Congress' THOMAS: U.S. Congress on the Internet,⁷⁶ the text of the Congressional Record from 1989 up to present is covered. However, there is a large gap in searchable Congressional Record information between 1873 and 1989, precisely the period in which most of the current federal statutes were enacted.

It is well known that the federal government mandates that United States citizens conform their behavior to the laws made pursuant to the United States Constitution. To conform their behavior to the laws of the United States (e.g., the federal statutes), the people must have a reasonable opportunity to determine the meaning of the terms of each federal statute. As discussed above, the meaning of a statutory term is comprised of the subject matter of that statutory term plus the scope of the subject matter of that statutory term (e.g., meaning = matter + scope). The subject matter of a statutory term is set out in the text of a federal statute. The scope of the subject matter of a statutory term is set out in the Congressional Record. Therefore, the people need reasonable access to the Congressional Record to determine the scope of the meaning of the terms in a statute in order to comply with the mandate from the federal government that the people conform their behavior to the laws made pursuant to the U.S. Constitution. Given the insignificant cost of making the Congressional Record available to every U.S. citizen over the Internet on one hand, and the necessity for reasonable access to the Congressional Record on the other hand, due process under the U.S. Constitution requires that Congress place the entire Congressional Record on the Internet. In other words, the process that is due from the federal government in response to its mandate that U.S. citizens conform their behavior to laws made pursuant to the U.S. Constitution, is that the federal government must place the entire Congressional Record on the Internet. Thus, as Congress' part in complying with the due process rights retained by the People, I recommend that Congress make the Congressional Record, from its 1789 inception to present, available on the Internet in a keyword, searchable format.⁷⁷

Judicial activists misuse Congressional Record entries by looking partially past the statutory language to manipulate legislative history, thereby creating the appearance that their pre-determined conclusion as to the body Congress' meaning of a statutory term is constrained by the legislative process. As Judge Kozinski has noted,

The fact of the matter is that legislative history can be cited to support almost any proposition, and frequently is. The propensity of judges to look past the statutory language is well known to legislators. It creates strong incentives for manipulating legislative history to achieve through the courts results not achievable during the enactment process. The potential for abuse is great.⁷⁸

In concurrence with this is Justice Breyer who stated that "[t]he problem of legislative history is its abuse, not its use."⁷⁹

By compelling the trier of law to expressly address and analyze each intrinsic legislative fact, the rules of the STA Method prevent judges from abusing the legislative process by "looking over a crowd and picking out [their] friends," in the words of Judge Leventhal,⁸⁰ or from looking over a crowd and eschewing all as not friendly. Only those meanings of individual members that are voted into law by a majority of Congress are elevated to law, the subject matter of which is in the text of the statute and the scope of which is set out in the Congressional Record. The other meanings residing in the Congressional Record that are neither voted upon, nor receive a majority vote, become discarded political ideas regarding that statutory term and shall not be revived by judicial activists. Supporting the actions of the majority in Congress over the actions of individual members of Congress is Chief Justice Roger Taney who stated in 1845 that "[i]n expounding . . . law, the judgment of the court cannot, in any degree, be influenced by the construction placed upon it by individual members of Congress in the debate which took place on its passage, nor by the motives or reasons assigned by them for supporting or opposing amendments that were offered."⁸¹ To this end, the trier of law must comb the Congressional Record backwards and forwards for any entry that is relevant and timely to the statutory term being addressed and analyze this legislative factual evidence. As a good guideline by which to initially operate, those timely Congressional Record entries that refer to the bill that enacted the disputed term into law may be entries that have relevance to the disputed term.⁸²

Thus, the third step in analyzing for the body Congress' meaning of the term at issue is to organize the relevant and timely (A) floor discussions, (B) bills, and (C) reports into groups. Next, each Congressional Record entry within each group is set out expressly and analyzed in reverse chronological order to give proper weight to each entry. (Note that in the fourth step of this part of the STA Method, titled The Statute's Progression History Estoppel, the entries are analyzed in forward chronological order to identify disclaimed meanings.)

Under "The STA Rule of Omniscience," the relevant upstream-in-time floor discussion, bill, and report intrinsic evidence is irrebuttably presumed to be known by each member of the body Congress, the President, and the public prior to the current floor discussion, bill, or report being analyzed. The reason for this is that these intrinsic entries were applicably entered into the printed and published Congressional Record. Since the relevant upstream floor discussion, bill, and report evidence is irrebuttably presumed to be known by each member of the body Congress prior to the current floor discussion, bill, or report being analyzed, the weight of relevancy dictates that the downstream relevant floor discussions, bills, and reports-those later in time-are more relevant to whether the body Congress reasonably gave a disputed term a different and particular meaning than the earlier, upstream floor discussion, bill, and report evidence. Since more weight is given to the relevant floor discussions, bills, and reports that are later in time than are earlier in time, the grouped Congressional Record entries are set out and analyzed in reverse chronological order, i.e., the later entries are analyzed first to give effect to this difference in weight.

The order in which each group is analyzed gives the judiciary further guidance to the body Congress' meaning of a disputed term. In concluding that floor discussion evidence should be analyzed first, Senator Hatch reasoned that "Congress often does not know how to resolve a problem until it has engaged in a lengthy debate."⁸³ Moreover, since all legislative meanings of a disputed term are presented, challenged, amended, or voted upon during floor discussions, floor discussion evidence is analyzed before bill and report intrinsic evidence.

i. Floor Discussions

The Congress of the United States is made up of the House of Representatives and the Senate, with each member of Congress similarly elected to their position by the People of the several states. As one of the benefits of their position, elected representatives are entrusted by the People with the authority and responsibility to decide the legal meaning of a statutory term that they want to envelop into that statute. The Constitution gives effect to this by entitling each member of Congress to legislator isonomy; that is by entitling each member to equal floor speaking rights and privileges subject to the legislative rules concerning the statements made on the floor of Congress under Article I, Section 5, Clause 2. For this reason, the majority of the text in the Congressional Record is of congressional floor discussions (sometimes provocatively referred to as congressional debates). Under the rules of the STA Method, this honor and privilege of serving as an individual member of Congress is to be given full effect by the trier of law. Thus, Congressional Record entries of floor discussion testimony from one member is accorded equal weight with that of another member subject only to the other rules of the STA Method.

There are certain issues regarding the Congressional Record floor discussion entries that require further clarification as to how these issues are addressed by rules of the STA Method. These issues include: (a) the President's legislative power; (b) post-discussion printing devices; (c) the manner of delivery in making statements on the floor; (d) the member's position within Congress, position concerning the procedural progression of the bill, or position likewise; (e) whether a certain member actually hears, reads, or otherwise has genuine knowledge of floor discussions; and (f) whether the legislature was made up of reasonable persons pursuing reasonable purposes reasonably during floor discussions.

(A). The President's Legislative Power

The Constitution gives the President powers that allow the President to uniquely contribute to the legislative process. Under Article I, Section 7, the President has approval power over bills as well as orders, resolutions, and votes that require bicameral concurrence.⁸⁴ Under various other sections of the Constitution, the President is authorized expressly to make State of the Union Addresses, budget messages, economic reports, and measure recommendations directly to Congress. Moreover, the President can make speeches, signing remarks and the like that influence legislation.

Even with these presidential powers made explicit by the Constitution, the President's direct role in making law is ancillary in every respect to Congress' power to make all laws. The President's Article I, Section 7 approval power is at most a "go-no go" test, a "sign-return and objections" test, or an "approve-disapprove" test. For example, the Court held the Line Item Veto an unconstitutional delegation of power from Congress to the President in Clinton v. City of New York.⁸⁵ In the case of a two-thirds congressional majority, the President's sign-return (pocket veto) power is made legally irrelevant by Congress. Even if the President signs into law a statute without fully understanding the body Congress' meaning of the terms in that statute, that law is still given full effect in the courts. Ignorance of the law is no excuse, whether you are the President of the United States or the average citizen.

With a few exceptions (some listed above), the President's ability to make entries into the Congressional Record is the same as that of the average citizen. A member of Congress may applicably place pre-enactment statements of the President in Congress' journal as a negotiation tactic to obtain the President's signature on a bill in the same way that a member may applicably place a statement of a constituent in the Congressional Record to appease that constituent. Thus, President and Vice President messages, statements, or declarations, like other entries applicably set out in the Congressional Record (such as "hot" debates, newspaper clippings, or canned colloquies), are accorded equal weight with floor discussion testimony of a member of Congress since all these entries essentially have been adopted by an individual member of Congress. This is consistent with the above rule that Congressional Record entries of floor discussion testimony from one member is accorded equal weight with that of another member subject only to the other rules of the STA Method.

Given the broad nature of State of the Union Addresses, budget messages, and economic reports, it is unlikely that legislative platforms made by the President during such speeches will be relevant toward a particular term within a particular bill. Moreover, presidential messages and other information not applicably set out in the Congressional Record are accorded no more weight than extrinsic evidence. Further, a pre-enactment recommendation by the President under Article II, Section 3 is extrinsic evidence unless a member of Congress applicably sets out such evidence in the Congressional Record.

Since a member of Congress cannot timely set out in the Congressional Record the remarks made by the President at the signing of a bill, presidential signing remarks are always extrinsic evidence regarding that bill. For example, then Attorney General Edwin Meese had it right when he persuaded the publishers of U.S. Code Congressional and Administrative News (hereinafter "U.S.C.C.A.N.") to include presidential signing remarks as extrinsic evidence in that publication's non-binding-on-the-courts legislative history collection. Others reacted poorly to Mr. Meese's actions.⁸⁶ Thus, for these and other political questions, the judiciary is to defer to Congress' application of its Article I, Section 5, Clause 2 legislative rules concerning whether a statement made on the floor of Congress or elsewhere is to be applicably set out in the Congressional Record.

(B). Other Issues

Statements applicably set out in the Congressional Record are irrebuttably presumed to be statements of a member on the floor.⁸⁷ Consequently, post-discussion printing devices such as Congressional Record page numbers, headlines, and anonymous bullets are at most extrinsic evidence since they are not statements applicably set out in the Congressional Record. This leads to the conclusion that the use of an anonymous bullet as a post-discussion, extrinsic evidence printing device in the Congressional Record to indicate that a statement was not actually delivered on the floor is not sufficient to change the intrinsic evidence status of that statement to extrinsic. Individual, unidentified members of Congress may not look over the Congressional Record after the conclusion of a floor discussion and pick out which entries the Judiciary is to befriend and which entries the Judiciary is to eschew as not friendly through the use of an anonymous bullet. Under the rules of the STA Method, the Judiciary is compelled to take friendship with all of the relevant and timely intrinsic evidence. Moreover, as the Laws and Rules of Publication of the Congressional Record state, the bullet is for historical accuracy; the bullet is not for evidentiary purposes in a court of law.⁸⁸

Congress must either exclude non-proceeding statements from the Congressional Record-the "Journal of its Proceedings" as the Constitution mandates in Article I, Section 5, Clause 3-or adopt Article I, Section 5, Clause 2 rules that inherently carry with them an irrebuttable showing of reliability concerning non-proceeding statements. In other words, political winners in Congress assume the risk of altering the legal meaning of a term in a statute to the degree the political winners allow individual members of Congress to applicably include statements in the record "that are not the subject of debate" as a means of satisfying a constituent "who was not happy with the outcome of the law."⁸⁹ Under the rules of the STA Method, the courts remain independent of such parliamentary tactics. Where an individual member requesting publication of statements not subject to debate concurrently disclaims any augmentation of any term meaning in any bill or statute regarding the unspoken Congressional Record entry, such a timely and relevant concurrent disclaimer statement applicably set out in the Congressional Record may achieve the legal goal of the anonymous bullet, where a post-discussion printing device links the concurrent disclaimer statement with the unspoken Congressional Record entry. A spoken example would be, "The following is not to be used to contribute to the scope of the subject matter of any statutory term." This progression history estoppel method may also open the judicial activist door; thus more study by Congress on this proposed solution is warranted.

Politics are the realm of the legislature and the American voter; not of a judiciary desiring to remain independent. Thus, a legislator's skill at being a legislator has no legal weight under The STA Rule of Omniscience. In other words, under The STA Rule of Omniscience, parliamentary tactics (such as whether a certain member actually hears, reads, or otherwise has genuine knowledge of the presentations on the congressional floor to the body Congress as evidenced by their applicable entries in the Congressional Record) have no legal weight. It is ironic that on one hand, some members of the Judiciary disparage the legislative process by complaining that few members of Congress actually have genuine knowledge of the intrinsic evidence, and on the other hand have no qualms about holding all legislatures bound to the judiciary's unwritten, inconsistent rules concerning the code the courts use to analyze statutes, where it is almost a sure bet that few members of Congress or the public have genuine knowledge of such a code.⁹⁰

The trier of law is not to give any weight to the parliamentary tactic of using different manners of delivery to make statements on the floor. Moreover, in analyzing floor discussion evidence, the trier of law is not to give any weight to the member's position (i) within Congress, (ii) concerning the procedural progression of the bill, or (iii) otherwise. Furthermore, whether "the legislature was made up of reasonable persons pursuing reasonable purposes reasonably"⁹¹ is for the voters to decide, not the Judiciary. The exclusive power to account for absent members, whether in body or mind, is vested in one Congress by the Constitution under Article I, Section 5, Clause 1 and 2 or in the People through their power to elect their representatives. Certainly, the power to account for absent members of Congress is not in the hands of the unelected Judiciary.

One final issue in this area: in 1988, Senator Orrin Hatch set out a list of factors that the Judiciary should consider when using legislative history under the judicial self-restraint, encraty method.⁹² It is true that an actual vote and the revealed bounds of a proposition help a judge decide which propositions are political winners and which propositions are political losers. However, concerning the STA Method, the other factors listed for the encraty method are predominately political questions as discussed above. Allowing the Judiciary to consider even one of these political questions under the guise that it is a legal factor will create a loophole in the STA Method that will allow the Judiciary to implement its own meaning of a term in a statute.

On the line is our political process for which we as a people depend upon Congress as "a human institution" to serve our "basic human or societal needs."⁹³ Senator Orrin Hatch poignantly summarized this when he stated that:

[w]hat is at stake . . . is nothing less than our right to democratic self-government as opposed to . . . 'Government by Judiciary.' For when we commission judicial activist who distort the Constitution to impose their own values, policy preferences, or visions of what is just or right, we are in effect sacrificing our ability to govern ourselves through the democratic political process to the whims and preferences of unelected, life-tenured platonic guardians.⁹⁴

To this end, the life of the law has never been logic: it has been the experience of the elected members of Congress.⁹⁵ Because of the experiences of the members of Congress and the stakes involved in enacting law, there is nothing genteel or civil about politics. Congress is better off following the Judiciary's lead and keeping such politics in the confines of its own branch, rather than passing them onto the other branch.⁹⁶

ii. Bills

Bill evidence is analyzed second because a bill embodies the potential law that is voted upon during the floor discussion. The text of a series of related bills is amended through the legislative process where the last bill represents the text of the enacted statute. In conjunction with notification of the President signing a bill into law, the text of the statute is reprinted in the Congressional Record. Thus, the statute itself contributes to the scope of the meaning of each term in that statute both in its various bill forms and as an enacted statute.

iii. Reports

Report evidence is analyzed after floor discussion and bill evidence since report evidence at best gives insight into the context of the floor discussions and bills. Ideally, staff members of Congress will write such reports to embody the collective understanding of those members of Congress involved in drafting and studying the proposed legislation as set out in the transcripts of congressional hearings. Human nature being what it is, the members of Congress, like the members of the Judiciary, will delegate the more mundane tasks of government to their staff. The Constitution accounts for such human nature⁹⁷ and so do the rules of the STA Method. Of course, the report will be subject to the checks and balances of signatory, publication, and distribution approval of one or more members of Congress under Article I, Section 5, Clause 2 of the United States Constitution.

Judge Abner Mikva, a former twenty-plus year member of Congress, has warned against wholesale acceptance of committee reports since "[c]ommittee reports are too frequently used for political horse-trading and individual ego trips."⁹⁸ Moreover, Senator Hatch has noted that committee staff reports are "only tangentially related to the actual legislative process. Courts [as directed by the Federal Rules of Evidence] ought to accord such reports very little . . . significance."⁹⁹ Overemphasizing this staff-prepared, "collective understanding" by analyzing it before floor discussion or bill evidence relaxes the pressure on legislatures "to discharge their responsibility with care, understanding and imagination,"¹⁰⁰ politically minimizes each elected member of Congress' floor-speaking rights and privileges, and usurps Congress Article I, Section 5, Clause 2 political power. Elected members of Congress who not directly involved in the procedural progression of a bill have every right to wait until the floor discussion concerning the bill, or its reports, as an outflanking, parliamentary tactic to surprise their unprepared political adversaries with cogent arguments that will sway the body Congress to vote or amend in opposition to the drafters or preparers of the bill. An elected member of Congress who is involved directly in the procedural progression of a bill may add that member's voice to the collective understanding of the report during the floor discussion concerning the bill or its reports as a pincers movement to cut off their unprepared political adversaries with substantially simultaneous cogent arguments that will sway the body Congress to vote or amend in favor of the drafters or preparers of the bill.¹⁰¹

By overemphasizing report evidence, no member of Congress will bother to attend the floor discussions since the game will have already concluded once the staff-prepared report is issued. Although far-fetched in thought, by overemphasizing report evidence in the courts, we may eventually end up with a congressional floor discussion with only two members in attendance: the presiding member and a C-SPAN television camera pointed at the member who is speaking on the floor, pretending that in each seat is a member attentively listening and learning. If parliamentary tactics such as outflanking, pincers movement, bait and switch, and filibustering are perceived by the Judiciary through the Judiciary's incomplete analysis to produce absurd, anomalous, or unfair results, it is for Congress-not the Judiciary-to apply or augment its Article I, Section 5, Clause 2 rules of proceedings concerning such parliamentary tactics. Thus, the Judiciary is to analyze report evidence after floor discussion and bill evidence.

d. The Statute's Progression History Estoppel

For the fourth of the six steps in analyzing a term at issue in the statute itself, each relevant and timely floor discussion, bill, and report entry is analyzed sequentially by record entry date (e.g., forward chronological order) to determine whether any congressional meaning of a disputed term found in analyzing the grouped floor discussions, bills, and reports was effectively disclaimed in subsequent congressional entries. Although floor discussions, bills, and reports are analyzed as groups, the entries within each group influence and may supersede one another as each entry of each group individually makes its appearance on the congressional floor. Thus, this forward entry progression history limits the body Congress' meaning of a disputed term or estops assertion of the body Congress' meaning of a disputed term to exclude any meaning of a term at issue in a statute that was effectively disclaimed during downstream progression of that term through Congress. To coin a phrase, this is the "Progression History Estoppel."¹⁰²

e. Extrinsic Evidence

As discussed above, extrinsic evidence is evidence that is not applicably set out in the Congressional Record and thus is external to the body Congress' meaning of a statutory term. Favoring extrinsic evidence over intrinsic evidence is not only in the opposite direction of getting the meaning precisely right, but is at odds with the principles of democracy established by the People of the United States. If the Constitution does not elevate the bits and pieces that make up the legislative history to the status of law, there is no way that the Constitution elevates the bits and pieces that make up the extrinsic evidence to the status of law or even to legislative factual evidence. The members of the body Congress have no opportunity to disapprove or approve of extrinsic evidence, and the President has no chance to sign or return and object to extrinsic evidence or approve or disapprove of extrinsic evidence. Extrinsic evidence does not contain any "matter which is properly to be regarded as legislative in its character and effect."¹⁰³ Of course, "[n]ot every action taken by either House is subject to the bicameralism and presentment requirements of Art. I."¹⁰⁴ In the case of the floor discussion intrinsic evidence and report intrinsic evidence, it is illogical as well as impracticable to subject it to either the bicameralism or presentment requirements. Unlike intrinsic evidence, however, even the most thorough analysis of extrinsic evidence represents no view of any legislator. In short, extrinsic evidence does not represent any of the views of any actor in the legislative process, including lobbyists and committee staff people, who are intimately involved with particular legislation.

Judicial activism is destructive. At best, it contaminates the legislative process. At worst, it subverts our system of Government by Constitution. While the Judiciary's misuse of intrinsic evidence can distort the proper voice of each branch of our Government by Constitution,¹⁰⁵ the use of extrinsic evidence over intrinsic evidence distorts this proper voice in all cases. If intrinsic evidence at best can shed light only on what a small portion of Congress gave as the meaning of a term in a statute,¹⁰⁶ extrinsic evidence will never shed any light on what a small portion of Congress gave as the meaning of that same term. This is because it is impossible to reconstruct, accurately or otherwise, what transpired when extrinsic evidence was created as the body Congress used its vested legislative power to pass a bill.

Relying on extrinsic evidence over intrinsic evidence subverts the Constitution by accepting extralegislative materials as legislative authority. The idea that the diverse membership of the entire world from which the extrinsic evidence may be drawn can ever have one collective "intent" on anything, is not only a myth but may be used to allow those foreign to the United States to influence our legislative process. If there is any perceived ambiguity in the body Congress' meaning of the terms in a statute after complete analysis under the STA Method, it is most likely because some members of the unelected Judiciary and some members of the legal academic world will have intentionally maintained this perception of ambiguity to further their political goals through the ever-present, nonlinear paths in the hierarchy of the Judicial Branch.

The extralegislative nature of extrinsic evidence dictates that extrinsic evidence is at most adminiclar evidence. Thus, extrinsic evidence may be used by the Judiciary only to aid in understanding the body Congress' meaning of a vague or ambiguous term used in a floor discussion, bill or report. Thus, the hierarchy of legislative factual evidence is as follows: The body Congress' legal meaning of an expressly defined statutory term is determined from the text of the statute. The body Congress' legal meaning of a disputed statutory term is determined from the intrinsic evidence of the text of the statute, as well as floor discussion, bill, and report intrinsic evidence. The body Congress linguistic meaning of a vague or ambiguous term in a floor discussion, bill or report may be clarified from extrinsic evidence, subject to the rules of the STA Method.

To limit the power of the government, the People of the United States enumerated and sandwiched the government's powers between the individual liberty of the People (as declared in the Preamble to the Constitution) and the individual liberty of the People (as declared in the Ninth and Tenth Amendment of the Bill of Rights). Thus, where the factual issues of the litigants fall within the scope of Congress' exercised power to make all laws, the Judicial Branch of the government may not use extrinsic evidence to subtract from, alter, or vary the scope of the subject matter of a term in Congress' law. Moreover, where the factual issues of the litigants appearing before the court fall outside the scope of Congress' exercised power to make all laws, the Judicial Branch of the government may not use extrinsic evidence to add to, supplement or extend the scope of the subject matter of a term in Congress' law. To do so in either case would be to bypass the Constitution's restriction on the Judicial Branch of the government to proceed only with that power the Judicial Branch is given.

Limiting the use of extrinsic evidence to at most explaining the language used by a member of Congress, allows the people subject to the laws of the United States the right to review the undisputed intrinsic evidence as set out in the public Congressional Record, apply the rules of the STA Method to ascertain the matter and scope of the law and, thus, comport their behavior to the terms of the law enacted by Congress. Construing Congress' right to use the Article I, Section 5, Clause 3 public record in making all laws in a way that implicitly or explicitly allows any branch of the government to use the extrinsic evidence to alter or change the intrinsic evidence, disparages the due process rights of the People.

With the above discussion in mind, rules under the STA Method regarding extrinsic evidence can be established. Where analysis of the intrinsic evidence alone will reasonably determine the body Congress' meaning of a disputed term, it is improper to give any weight to extrinsic evidence to alter the disputed term's reasonably determined meaning. The rationale for this is that intrinsic evidence-the text change of the statute, the act, floor discussions, bills, and reports-rather than extrinsic evidence, constitutes the Article I, Section 5, Clause 3 record of the elected members that make up the body Congress.

Where the body Congress' linguistic meaning of a term in a floor discussion or report cannot reasonably be determined from the intrinsic evidence alone, extrinsic evidence may be considered, not as legislative factual evidence, but as an aid to getting the trier of law thought process within the linguistic area of Congress' actions. In these very narrow circumstances, extrinsic evidence such as legislation, judicial cases, learned treatises, and dictionary definitions¹⁰⁷ may be used as extrinsic evidence of the body Congress' linguistic meaning of a term in the Congressional Record. In other words, extrinsic evidence may be admitted only as a linguistic aid to the memory and understanding of the court.¹⁰⁸ Extrinsic evidence may neither be admitted to subtract from, alter, vary, add to, change, or supplement intrinsic evidence or the legal meaning of a term in Congress' law.

While an argument can be asserted that the body Congress knows all knowledge prior to passing the act, there is no logical (and therefore no legal) way to conclude that such knowledge had any influence on whether the body Congress reasonably gave a disputed term a different and particular meaning from that body term's assumed ordinary and reasonable meaning unless a member of Congress applicably set out this evidence in the Congressional Record. Thus, although timely legislation, judicial cases, learned treatises, and dictionary definitions may be relevant as extrinsic evidence where not applicably set out in the Congressional Record, under "The STA Corollary" to The STA Rule of Omniscience, timely extrinsic evidence is not legislative factual evidence.

Certain extrinsic evidence issues require further discussion to clarify how these issues are addressed by rules of the STA Method. These issues include: (i) the role of interest groups in procuring legislation; (ii) existing legislation and judicial analysis; (iii) transcripts from Committee Hearings; and (iv) how the rules of the STA Method work.

i. The Role of Interest Groups in Procuring Legislation

Judge Posner correctly observed that the role of interest groups in procuring legislation is fundamental.¹⁰⁹ The President, business organizations, labor unions, public interest groups, civil servants, legislative staffs, the average citizen, and the Judiciary all have an interest in Congress' legislation. Thus, after consulting the writings or statements of the groups and individuals with special interest in legislation ("special interest" is used in this article melioratively), an individual member of Congress should manufacture legislative history by planting legislative meaning of a statutory term in the Congressional Record per the Article I, Section 8, Clause 2 rules with the intent that the courts find and use this meaning to the extent that it is the body Congress' meaning of the statutory term at issue.¹¹⁰ The Constitution accounts for such human nature¹¹¹ and so do the rules of the STA Method. Since "[e]very legislative staff member wants to write a speech or report that determines the outcome of a future case,"¹¹² the political winners will cancel out the political losers, thereby mitigating any perception of abuse or adulteration of the political process.

It is important to note that mere citation to a case during a floor discussion or in a bill or report is not sufficient to rise to the STA Method level of "applicably set out in the Congressional Record." For example, in the 1989 Supreme Court case of Blanchard v. Bergeron,¹¹³ a congressional committee report made reference to the Fifth Circuit case of Johnson v. Georgia Highway Express, Inc.,¹¹⁴ without describing the twelve factors within the Johnson case. Correctly reasoning that the members of Congress "have better uses for their time than [setting off for the nearest law library to pour] over . . . Court opinions," Justice Scalia's concurring opinion indicated that the twelve Johnson factors would have to have been sufficiently described in the committee report to be deemed applicably set out in the Congressional Record.¹¹⁵ Thus, any "heady feeling" of legislative immortality that a young staffer has through inserting a citation to a Supreme Court, appellate court, or district court case in a committee report will be short-lived under the rules of the STA Method.

Members of Congress have exclusive control over whether the interests of groups and individuals with special interest in legislation become intrinsic evidence by reason of Congress' control over the Congressional Record through Article I, Sections, Clause 2 and 3. For example, a judge or Supreme Court Justice having a special interest in a linguistic definition must exercise a dedication to the rule of law as well as self-restraint by waiting for Congress to elevate that linguistic definition to an applicable legal definition through the Congressional Record before applying that definition as law. Thus, the timely interests of these special interest groups are deemed intrinsic evidence only if these interests are applicably set out in the Congressional Record by an elected member of Congress. Such applicable entries are accorded equal weight with floor discussion testimony of a member of Congress since these applicable entries essentially have been adopted by an individual member of Congress. This is consistent with the STA Method rule that Congressional Record entries of floor discussion testimony from one member is accorded equal weight with that of another member subject only to the other rules of the STA Method.

ii. Existing Legislation and Judicial Analysis

Under the rules of the STA Method, each member of Congress, like others subject to the laws of the United States, is assumed to know of existing legislation and analysis thereunder. As the Court said in 1990, "[w]e assume that Congress is aware of existing law when it passes legislation,"¹¹⁶ in 1988 "[w]e generally presume that Congress is knowledgeable about existing law pertinent to the legislation it enacts,"¹¹⁷ and in 1987 "Congress is presumed to act with full awareness of existing judicial interpretation."¹¹⁸ In 1979, the Court drew the conclusion that "[i]t is always appropriate to assume that our elected representatives, like other citizens, know the law."¹¹⁹ One year earlier, the Court relied on 1975, 1951, and 1920 Supreme Court cases to state that "Congress is presumed to be aware of an administrative or judicial interpretation of a statute and to adopt that interpretation [as extrinsic evidence] when it re-enacts a statute without change."¹²⁰ Moreover, as early as 1835, the Court stated that "Congress must be presumed to have legislated under this known state of the laws and usage of the treasury department."¹²¹

Thus, consistent with the Court's holdings, when enacting new legislation, timely legislation, legal cases, and other evidence not applicably set out in the Congressional Record concerning that new legislation is at most relevant as extrinsic evidence under the rules of the STA Method. In other words, information merely written down somewhere, without more, is not sufficient to rise to the level of intrinsic evidence. Using such extrinsic evidence as intrinsic evidence is another trick used by judicial activists to sidestep Congress' meaning of a statutory term and implement that judicial activist's meaning for that same statutory term.

Congress has the power to enact statutes in whole or in part. Where Congress enacts a statute in various parts, the other subsections are intrinsic to the subsection at issue only if the other subsections are applicably set out in the Congressional Record concerning the subsection at issue. As Senator Hatch observed, "[i]t is undeniable that some legislative history plays no legitimate role in the legislative process."¹²² Thus, being part of a statute, without more, is not sufficient to be used as intrinsic evidence of another part of that same statute.

The rationale for deeming as extrinsic evidence text merely written down somewhere and deeming some text within a statute extrinsic to other text within that same statute centers on the act of applicably making Congressional Record entries. By definition under the Rules of the STA Method, extrinsic evidence is evidence that is not applicably set out in the Congressional Record. If a member of Congress did not know of this extralegislative information, the information could not have had influence on the meaning of a statutory term. If each member of Congress knows about this information (as is presumed by the Supreme Court), every member of Congress irrebuttably elected not to applicably enter the information in the Congressional Record. Thus, the information had no influence on Congress' meaning of the statutory term. In other words, "to analogize silence to legislating goes rather far . . . . [S]ilence seems quite far removed from the Constitution's paths of bicameralism and presentation to the President."¹²³ Either way, Justice Stevens' admonishment bolsters this rationale: "Justice Frankfurter's scholarly observation concerning the [analysis] of a statutory [term] also applies to the analysis of legislative history: 'One must . . . listen attentively to what it does not say.'"¹²⁴ If the Congressional Record does not "say it," it is not intrinsic evidence.

The Constitution is the supreme law of the land.¹²⁵ Moreover, Congress, not the Judiciary, is the architect for the basic human or societal needs of the people under our Government by Constitution.¹²⁶ Although Court opinions are the supreme legal precedents of the land, the body Congress' meaning of a disputed term in a statute is set out by the elected members of Congress in the Congressional Record as authorized by the Constitution and not set out in case law by unelected judges. Thus, case opinions at any level-including the U.S. Supreme Court-not applicably set out in the Congressional Record by a member of Congress essentially carry no legal weight as to the body Congress' meaning of a term in a statute. This distinction between statutory law and common "law" may be hard to accept by attorneys trained only in the common law system. However, the Constitution's Article I, Section 8, Clause 18 directive that Congress shall have the power to make all laws in term - and especially in term meaning - must be obeyed.

iii. Transcripts from Committee Hearings

In general, transcripts from Committee Hearings are extrinsic evidence since these transcripts are usually embodied into intrinsic committee reports, where such reports subsequently are presented to the body Congress. Thus, where transcripts from committee hearings are not applicably set out in the Congressional Record, transcripts (and portions of transcripts) from committee hearings are extrinsic evidence. The rationale for this is that an extrinsic evidence committee meeting statement is merely an isolated excerpt from a statement made by an unelected witness to a single committee meeting of a single House as ultimately embodied in a single intrinsic committee report by unelected staff members, where the single intrinsic committee report is analyzed along with all the other intrinsic evidence for use in determining the body Congress' meaning of a statutory term enacted by the body Congress. Under the STA Method, transcripts from committee meetings are not bestowed encyclical weight. The best use of an extrinsic evidence committee meeting transcript that I have found is to use it to identify the legislative proposals that lose during the political process but are impermissibly revived by judicial activists during the judicial process.¹²⁷

What presents itself as an exception to the above rule occurs when the House resolves itself into the Committee of the Whole House. For example, in considering House Bill 5037-the Law Enforcement and Criminal Justice Assistance Act of 1967¹²⁸-the House resolved itself into the Committee of the Whole House on the State of the Union where transcripts of this Committee meeting were reproduced in the Congressional Record.¹²⁹ The STA Method rule is that a piece of evidence is intrinsic if that evidence was applicably set out into the Congressional Record. Thus, under circumstances where the transcript of the Committee of the Whole House meeting is applicably set out in the Congressional Record, such a transcript is intrinsic evidence and thus is not an exception to this rule.

iv. How the Rules of the STA Method Work

The STA Method relies on Article I, Section 5 of the Constitution to compel the Judiciary to implement the body Congress' meaning of a statutory term. The congressional proceedings rule, that only elected members of the body Congress may make Congressional Record entries, serves as the gatekeeper to Congress' power to make all laws.¹³⁰ Since only elected members of the body Congress may make Congressional Record entries, The STA Rule of Omniscience allows each member of the body Congress that member's Constitutional authority and responsibility to decide the meaning of a statutory term that the member wants to envelop into the body Congress. Since only elected members of the body Congress may make Congressional Record entries, The STA Corollary to The STA Rule of Omniscience keeps out a non-member's meaning of a statutory term. Since only elected members of the body Congress may make Congressional Record entries, the interrelationship between The STA Rule of Omniscience and The STA Corollary is the impenetrable wall of "We the People" that keeps the elected body Congress' Article I, Section 8, Clause 18 legislative power to make all laws-in both word and word meaning-out of the hands of the unelected Judiciary.

There is a general concern in the legal community about the use of the Congressional Record. However, published compilations of separately bound legislative histories, the index to the Congressional Record, bill and resolution status tables in the Congressional Record index, and bill tracking reports aid the trier of law in obtaining all Congressional Record entries that are relevant and timely to the enacted bill being addressed. Although at times there may be a bulky amount of material to analyze, the adversarial process will help ensure that all of the relevant and timely intrinsic evidence will be brought to the attention of the trier of law. And, although there might be some concern about the bulk of the material in the Congressional record, under 44 U.S.C. § 901 the Joint Committee on Printing is required to take all needed action for the reduction of unnecessary bulk in the Congressional Record as part of its duty to provide that the Congressional record be substantially a verbatim report of the proceedings of Congress. Moreover, the academic legal community's access to an electronic version of the Congressional Record presently makes the search for Congressional Record entries regarding a particular bill introduced after 1984 relatively easy.

It is important to reiterate that evidence is untimely if not in existence at the time the statutory term was enacted. As stated above, using intempestive evidence (evidence that came into existence after the enactment date of the statute at issue) diminishes Congress' law into nothing more than an abstract proposal with which the Judiciary may do as it pleases ex post facto. Thus, untimely judicial opinions are inadmissible evidence in analyzing the body Congress' meaning of a statutory term. Moreover, since a judge's own meaning of a statutory term is always irrelevant, an issued judicial opinion implementing that judge's ow